At the August term, 1795, the following decree on the rehearing was pronounced:
By the Court.In the decree which was made in this cause, the error assigned is : That the court has adjudged that the services enumerated in the certificate of the complainant, did not entitle him to a settlement and pre-emption; and that the court has a right to declare it to be void.
As to the latter clause of the error which is alleged, it seems to the court:
*297First. That a certificate issued by the commissioners vests the holder of it with an indisputable fight against the commonwealth to the land it specifies, because government has ratified the certificate by receiving the price of the land ; or if having done this does not exclude an investigation of the right on behalf of the commonwealth, the other officers of government having been specially authorized and required to receive the price, and complete the title of the land, without an inquiry into the legality of the certificate, being also specially authorized, makes it evident, that it was the intention of the legislature to abide by the decision of the commissioners, and it might be further observed, that public utility absolutely forbade it to be otherwise.
Second. That the commonwealth having thus publicly transferred, or engaged to transfer its right, from general principles it is clear that an individual, who may afterward have located the same -land, under the purchase of a general right to appropriate vacant land, can not contest the validity of the certificate. Besides it is as clear from the land law, that such a purchaser had only a right to locate unappropriated land, and for this reason also, he ought not to be permitted to contest the legality of the certificate. From these considerations, it is evident, that this case is an exception to the rule of law, that an illegal execution of a power is no bar to a subsequent legal execution of it. But,
Third. Where any person had by law a vested right to land, when a certificate was fraudulently or erroneously obtained for it by another, it seems to the court, that the privilege of contesting the certificate is evidently given to the person thus injured, by that clause of the land law which authorizes a caveat to be entered against any survey, by a person who has a better right to the land it contains; and that this privilege is as evidently implied in those clauses which point out on what lands séttlement and pre-emption rights should be allowed, and to which they should be restricted.
The only exception contained in this law is, where there was a contest between the parties before the commissioners, and this exception is so expressed as necessarily to imply the privilege as to all others.
This implication is put beyond doubt, by a principle of common law which is universal, that no one is bound by any ministerial or judicial decision who was not a party or privy thereto. Neither does public utility require, nor can it ever justify the transferring a vested right from a legal claimant, to one who. afterward *298acquired his claim by fraud or mistake. As the defendant claims as a villager, he had not a vested right to the land in contest before he obtained his certificate, and as his certificate is younger than that of the complainant. The court is now of opinion for the reasons that have been stated, that the certificate of the complainant, even if it were manifestly illegal, can not be avoided by the defendant.
But on considering the first clause of the error assigned, the court is also now of opinion, that for the residence specified in the certificate of the complainant, lie was entitled under the law to claim a settlement and pre-emption, for the following reasons :
First. It seems to the court, that the declaration in the land law, by which the point ought solely to be ascertained, is explanatory in its nature, and like other explanatory acts or clauses, it should be taken literally, for an explanation of an explanation is an absurdity, nor ought reference to be had to the act explained for the meaning of any word or sentence the explanation contains, only those which are repeated therein from the act. In this instance only, the word settler is repeated from the act, where it is used to designate any of those who had settled on the western waters, either on lands which they had chosen for themselves, or in villages or townships; therefore it must have the same meaning in the declaration. It equally designates both classes of settlers, and consequently the declaration roquires that the several claimants should have made a crop of corn or resided one year at the places which they had respectively settled.
Second. It does not seem to the court, that the reason and nature of the case, will justify the making any distinction between those two classes of settlers as to what will entitle them to settlements.
The risk and charge of settling on the western waters are expressly recited, as the services for which a compensation was allowed to them, and by this declaration it evidently appears to have been the intention of the legislature only to fix a criterion by which real settlers might be distinguished from transient persons. If so, certainly a year’s residence or raising a crop of corn at their respective places of abode, would be as-good evidence of the intention of a person of one of these classes, as that of a person of the other class.
Third. The commissioners in a very great number of instances, did thus construe this declaration, and it seems to the court that a *299proper regard to uniformity of decision, requires that the construction which they gave to it should be established, more especially as it does not appear to admit of any other which is not equally doubtful.
It does ■ not appear very material in this case, to ascertain whether the commissioners made this construction in a ministerial or judicial capacity, for be that as it would, they were entrusted to expound the law under which they acted. It may however be observed, that when there was a contest, their construction was certainly judicial, and it can not be supposed, that they would vary the construction when it was ministerial. Therefore all their constructions on this law, must be considered as having at least equal solemnity with the constructions of other judicial courts of original jurisdiction-only.- .Perhaps indeed they ought to have more solemnity, as their judgment on all contested cases where there was a full hearing was final. So that to this case, the maxim is peculiarly applicable: contemporánea expositio est fortissima in lege.
The court being of opinion,, that the decree made in this cause is erroneous in the point of view which is stated in the error assigned as cause for a rehearing, it becomes necessary to decide on two questions not before considered, to ascertain how much land if any he is entitled to recover of the defendants :
First. Are the complainant’s location of his settlement with the commissioners, and the entry thereof with the surveyor, uniform and sufficiently particular, and if they are so, has he surveyed his settlement agreeable thereto ?
Second. Is the defendant’s location with the commissioners, which was made prior to the complainant’s entry with the surveyor, sufficiently special, and does the complainant’s survey interfere with it ?
On the first question the court is of opinion, that the complainant’s location with the commissioners, and his entry with the surveyor, are as particular and special as the law requires ; but it seems that the words in the entry, “ In-the corner between Col. Preston’s survey, and Douglass’ line,”- contain an explanation of his location with the commissioners which is a material addition thereto, and ought to be considered as having the same effect as an amendment to any other location : the owner is bound by it, and all subsequent locators.
This makes it necessary to introduce the second question. On *300which the court is of opinion, that as the defendant in his certificate calls for his improvement as heir-at-law to Francis McConnell, without any other special description, and now shows several improvements made by the said Francis, therefore the location is either too vague to be regarded, or it must be fixed to the improvement at the Pond spring, which it clearly appears from testimony, was the most notorious and generally known, and which from the surveyor’s report appears to lie out of the way of the complainant’s location with the commissioners, and his amendment to it with the surveyor. It then remains to consider whether the complainant has surveyed agreeably to them. The only doubt arises from his not having adjoined Douglass’ line, but as he calls for the corner between Col. Preston’s survey and Douglass’ line, and it appearing that Preston’s survey was on record, and that there was no record of Douglass’ line, but only that there was a line known to many persons by that name, it seems evident that the complainant supposed Douglass’ line run off from the corner of Preston’s survey, and in that way formed a corner in which he was mistaken : Therefore the court is of opinion that if the complainant had extended his survey farther toward Douglass’ line than the corner of Preston’s survey, that it would have been contrary to the apparent intention of the entry: And from the surveyor’s report it further appears, that should the complainant’s survey be made more strictly conformable to the other calls of his entry, it should still include the same land, so far as the defendants are interested, which he has surveyed.
Whereupon it is decreed and ordered that the complainant do recover of the defendants respectively, all the land contained in his said survey, and which is included within the boundary lines of the defendant McConnell’s patent. Order of survey, etc.